Refuse to pass accounts? Off to jail with you

This new case from Ontario should make out-of-control executors think twice about their refusal to conduct the estate properly. In Walling v. Walling, the beneficiaries of an estate got tired of trying to get the estate executor to deal with the estate and his refusal to account for what he'd done so far.  They applied to the court for help, and the court ordered the executor to pass his accounts, and fined him $1,000. He still didn't pass them so he was fined again for $1,500. By this time the judges were sick of him too so when he still failed to pass his accounts, he was put in jail for 7 days for contempt of court, and ordered to pay costs of $2,000.

Obviously I don't know why this executor refused to pass his accounts. But whatever the reason, I hope it was worth $4,500 and a week in jail. So far.

Read the full case here.

Jails and nursing homes

The following is an article found in the newest issue of The Caregiver Newsletter. While it's perhaps meant to be tongue-in-cheek, there is some real truth behind it! Click here to see the whole newsletter (be sure to check out the "Resources" section - they've found some real gems).

Here's the way it should be: Let's put the seniors in jail and the criminals in nursing homes. This would correct two things in one step:

• Seniors would have access to showers, hobbies and walks.
• They would receive unlimited free prescriptions, dental and medical treatment, wheel chairs, etc.


• They would receive money instead of having to pay it out.

• They would have constant video mongering, so they would be helped instantly if they fell or needed assistance
.
• Bedding would be washed twice a week and all clothing would be ironed and returned to them.
• A guard would check on them every 20 minutes.

• All meals and snacks would be brought to them.


• They would have family visits in a suite built for that purpose.
• They would have access to a library, weight/fitness room, spiritual counseling, a pool and education...and free admission to in-house concerts
by nationally recognized entertainment artists.
• Simple clothing – i.e. shoes, slippers, PJ's - and legal aid would be free, upon request.
• There would be private, secure rooms provided for all with an outdoor exercise yard complete with gardens.
• Each senior would have a P.C., T.V., phone and radio in their room at no cost.
• They would receive daily phone calls

• There would be a board of directors to hear any complaints and the ACLU would fight for their rights and protection.

• The guards would have a code of conduct to be strictly adhered to, with attorneys available, at no charge to protect the seniors and their families from abuse or neglect.

As for the criminals:

• They would receive cold food.
• They would be left alone and unsupervised.
• They would receive showers once a week.
• They would live in tiny rooms, for which they would have to pay $5,000 per month.


• They would have no hope of ever getting out.

"Sounds like justice to me!"




Seniors in prison will lose government benefits

Today's National Post reports that the federal government is about to pass a new law that states that seniors in federal prisons (and therefore serving at least two years' incarceration) are going to lose their government benefits. The logic behind it is that OAS and GIS are intended to cover the very basic needs of a senior, but while they are in prison their very basic needs of accommodation, food, heat etc are already being paid for out of public funds. The federal government is negotiating with the provinces to see whether they will follow suit for senior prisoners in provincial jails (usually serving less than two years). Click here to read the story.

Funeral fraud case in court

You know, I've heard of people targeting seniors with scams, but this guy really takes the cake. I'm glad he's been busted. Click here to read the story.

Jail term for theft by person holding power of attorney

Not long ago I mentioned in this blog that a person who was acting under an Enduring Power of Attorney could go to jail for theft of the property of the person he or she was supposedly representing. That post has led to several questions about how harshly the law might deal with a thieving Attorney under a Power of Attorney.

First of all, the crime of "Theft by a person holding power of attorney" is a specific crime under section 331 of the Canada Criminal Code. It is considered a specialized form of theft, which is a crime against property. The attorney can be found to have committed this crime if he or she sells, mortgages, pledges or in any other way disposes of some or all of the person's real or personal property. It is also theft if the attorney sold or mortgaged the property legitimately but then kept the proceeds, or did anything at all with the proceeds that he or she was not authorized to do by the Power of Attorney document. So you can see that it's a pretty broad definition.

The thieving Attorney can do jail time, as the punishment is the same as any other kind of theft. If the value of the property stolen is under $5,000, the jail term can be up to two years. If the property is worth more than $5,000, or if the property stolen is a testamentary instrument (e.g. a Will or Codicil), the jail time can be up to 10 years.

The reason many dishonest attorneys get away with abusing their position under the Enduring Power of Attorney is that nobody notices what's going on. And if anyone does notice, they tend not to say anything because they are too polite or feel they don't know enough about it, or they simply don't want to look greedy or nosy.

Can people go to jail for elder abuse?

Elder abuse refers to mistreatment of older persons both by people who are in charge of their care and people who are not in charge of their care. It can range from physical violence to extreme neglect (lack of food, lack of medical attention, etc). It also includes financial abuse such as a child helping himself or herself to an elderly parent's money, or a door-to-door scam artist targeting seniors.

In Canada, criminal offences and their punishments are governed by the Criminal Code, which applies to every province and territory. There is no specific offence of "elder abuse" created by the Criminal Code.

Any criminal offence that applies to Canadians in general obviously applies to seniors as well. Offences that could be charged as a result of mistreatment of seniors include; murder, manslaughter, assault, neglect causing bodily harm, sexual assault, failure to provide necessities of life, making threats, theft, forgery and fraud.

An interesting offence from an elder abuse perspective is the criminal offence of theft by a person holding a Power of Attorney. Perhaps this provision (section 331) should be brought to the attention of all individuals who agree to act as attorney for their parents.

Once a person is convicted of a crime against a senior, the Criminal Code also has a couple of provisions that would affect that person during sentencing. One is the fact that the judge can take into account that an offence is considered worse when it is done by a person in position of trust or power over the victim. The second is that the judge can take into account whether the crime was motivated by the victim's age or disability.

So can a person go to jail for elder abuse? They can, and they do. Here are just a few recent Canadian cases:

R. v. Grant (New Brunswick, 2009) - daughter jailed for failure to provide necessities of life when elderly mother died in circumstances of shameful neglect.

R. v. Nanfo (Ontario, 2008) - daughter jailed for failure to provide necessities of life for elderly mother, who passed away.

R. v. Peterson (Ontario, 2005) - son was convicted of failure to provide necessities of life for his elderly father who did not pass away but whose life was endangered by the son's neglect of him.

And in R. v. Foubert (Ontario, 2009), a worker in a long-term care facility was convicted of assault on a number of elderly residents of the facility.